https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4484

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MOMBASA** **ELC CASE NO. 398 OF 2017** **SULEIMAN ISSA SULEIMAN 1ST PLAINTIFF** **FAIZA ISSA SULEIMAN 2ND PLAINTIFF** **FATMA ISSA SULEIMAN 3RD PLAINTIFF** **NOOR ISSA SULEIMAN 4TH PLAINTIFF** **SULTAN ISSA SULEIMAN 5TH PLAINTIFF** **VERSUS** **AHMED MOHAMED ISSA DEFENDANT** **AND** **SAIDA MOHAMED ISSA** **FIRDAUS MOHAMED ISSA PROPOSED DEFENDANTS/APPLICANTS** **RULING** **A. Introduction** 1. Litigation, like all human contest, must at some point come to rest. Courts do not merely decide disputes; they close chapters in human conflict. This finality is key especially in family disputes, where the pull of grievance is often long after judgment has been pronounced. Yet from time to time, after judgment has spoken and after appeal has run its course, another knock is heard at the judicial door. It comes, as here, from persons who say: *we too ought to have been heard; the house in dispute was not merely a structure of walls and rooms, but part of an estate we administer; and justice, if it is to be called justice, must hear us before it passes us by.* 2. That is the cry presented by the proposed defendants/applicants, **Saida Mohamed Issa** and **Firdaus Mohamed Issa**, through the Notice of Motion dated **9 February 2026** brought under **Sections 1A, 1B and 3A** of the Civil Procedure Act, **Section 82** of the Law of Succession Act, **Order 1 Rule 10 and Order 51 Rule 1** of the Civil Procedure Rules, and **Article 159** of the Constitution. 3. By that application, they seek, in substance, to be enjoined after judgment was delivered as defendants in this suit; to have the judgment delivered on **6 December 2022** and the resultant decree reviewed, set aside, or otherwise reopened; and to be granted leave to participate in the proceedings and defend the suit on the merits. 4. Their case is straightforward. They say the suit property, **Plot Number MSA/BLOCK XVII/544**, is registered in the name of the late **Mohamed Issa Suleiman**; that they are the lawful administrators of his estate; that they were not joined in the proceedings; and that the judgment rendered in their absence is, for that reason, a nullity. 5. The motion is opposed. The plaintiffs maintain that the applicants were not strangers to this dispute; that they had knowledge of it long before judgment; that the matter was fully heard and determined by this Court; that the judgment was thereafter affirmed by the Court of Appeal on **18 July 2025;** and that what is now before the Court is not a plea for justice, but an effort to obstruct execution and an invitation to reopen litigation long concluded. 6. I have considered the motion, the supporting affidavit sworn by **Firdaus Mohamed Issa on 9 February 2026,** the further affidavit sworn on **16 March 2026**, the replying affidavit sworn by Faiza Issa Suleiman on **27 February 2026**, the annextures thereto, and the rival written submissions together with the authorities cited by counsel, and the material exhibited from the succession proceedings, this suit, and the appeal. **B. Background** 1. The path to this ruling is neither in dispute nor obscure. In the heart of *Bondeni, Mombasa*, stands a house on Plot Number **MSA/BLOCK XVII/544**. For over half a century, it has been home to a single, sprawling family. On the ground floor live the plaintiffs, children of the family’s patriarch, who have spent their entire lives within those walls. Above them, on the upper floors, reside their relatives, the descendants of an elder brother, Mohamed Issa Suleiman. For decades, they shared more than just a roof; living in apparent, undisturbed domestic peace. 2. When **Mohamed Issa Suleiman** passed away, the equilibrium broke. His son, **Ahmed Mohamed Issa,** looked down from the upper floors and saw his aunts and uncles not as co-owners of an ancestral sanctuary, but as unlawful occupants. In 2017, he went to the Kadhi’s Court, seeking their eviction. 3. By a plaint dated 3 November 2017, the plaintiffs moved this Court seeking, among other reliefs, a declaration that they were the beneficial owners of the house standing on Plot Number MSA/BLOCK XVII/544 together with the defendant’s deceased father’s estate; and, in the alternative, that they had acquired rights by adverse possession. They sought declaratory and injunctive relief against the defendant, Ahmed Mohamed Issa and costs. 4. The aunts and uncles did not flee; they fought back. They rushed to this Court, differently constituted, in 2017, asserting that their late brother had held the title to the land merely as a trustee for the entire family. They pointed to a sacred family covenant—a written trust agreement executed on **June 4, 1979**, signed by their late father and their late elder brother, formalised in the offices of an advocate. 5. The defendant denied the claim and maintained that his late father, Mohamed Issa Suleiman, was the registered owner of the suit property. 6. For five years, the fires of litigation burned in this Court. Ahmed fiercely defended the property, brandishing the absolute title document and his father's letters of administration. Finally, on **December 6, 2022**, this Court delivered its solemn verdict. This Court declared the plaintiffs the beneficial owners of the house existing on the suit property together with the defendant’s deceased father’s estate, issued a permanent injunction restraining the defendant from evicting the plaintiffs from the suit property, and awarded costs to the plaintiffs. 7. The defendant was dissatisfied and moved to the Court of Appeal in **Civil Appeal No. E025 of 2023**. For nearly three more years, the matter sat before the appellate judges. On July 18, 2025, the Court of Appeal spoke with absolute clarity. Having re-evaluated the record, it upheld the decision of this Court, affirming, in substance, the finding that the house on the suit property was held in trust and that the plaintiffs were entitled to the declaratory and injunctive relief granted. The plaintiffs, aging and weary, reasonably believed that their decade-long night of legal uncertainty was finally over. 8. They were wrong. 9. When the plaintiffs began enforcing their hard-won decree, two new figures stepped out from the shadows of the upper floors: **Saida Mohamed Issa and Firdaus Mohamed Issa, Ahmed’s** sisters. They hold a document of their own—Letters of Administration granted to them way back in **2011**. They knock on the doors of justice on **February 9, 2026**, bearing a Notice of Motion. They make an astonishing claim: they knew absolutely nothing about this nine-year legal war fought under their own roof. Because they, as the official administrators of their father's estate, were never formally added as defendants, they claim the entire judgment is a complete legal nullity. They demand that this Court freeze its own decree, rip up the judgment of 2022, erase the decision of the Court of Appeal, and force this family to start the entire trial all over again 10. This is the problem this Court must solve. Can a party sit quietly in the upper rooms of a disputed house while a legal battle rages below for nearly a decade, only to descend at the hour of execution, demanding to undo everything in the name of procedural perfection? 11. It is after those two determinations, one at trial and one on first appeal, that the applicants came before this Court on **9 February 2026.** Their case is that the suit property is registered in the name of **Mohamed Issa Suleiman**, now deceased; that they are the administrators of his estate by virtue of the grant issued on **7 June 2010** and confirmed on **13 April 2011**; that they were never joined in this suit; that they only became aware of these proceedings on **2 February 2026**; and that the judgment rendered in their absence is a nullity which ought to be set aside *ex debito justitiae*. 12. On their part, the plaintiffs say the applicants are not candid. They point to material from **Succession Cause No. 371 of 2009** showing that as early as **2018** the applicants were aware of **ELC No. 398 of 2017,** and indeed referred to it in a replying affidavit sworn in those proceedings. They also point out that the applicants are closely connected to the defendant, that the dispute concerns a family property occupied by members of the same wider family, and that the judgment and decree now impugned have already been affirmed on appeal. **C. The Application** 1. The prayers in the motion may be grouped into three broad heads: *joinder; setting aside or review of the judgment and decree; and consequential leave to amend pleadings and defend the suit.* 2. In particular, their Notice of Motion dated **February 9, 2026**, brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Section 82 of the Law of Succession Act, Order 1 Rule 10, and Order 51 Rule 1 of the Civil Procedure Rules, the Applicants approach this judgment seat seeking the following principal orders: 3. ***THAT this matter be certified as urgent, and service be dispensed with (spent);*** 4. ***THAT this Honorable court issue a temporary stay of the Decree given on 6th December, 2022, pending the inter-partes hearing of this application;*** 5. ***THAT the Applicants be enjoined as defendants in this matter, with leave to file requisite documents and be heard on the merits;*** 6. ***THAT this Court review and/or set aside the Judgment and Decree entered on 6th December, 2022, and the proposed defendants be allowed to unconditionally defend the suit;*** 7. ***THAT the Plaintiffs be compelled to amend their pleadings as appropriate and serve the same upon the Applicants.*** 8. In support of *joinder*, the applicants rely on Order 1 Rule 10 of the Civil Procedure Rules and argue that since they are the administrators of the estate in whose name the title stands, they are necessary parties whose presence is required for complete adjudication of the questions in controversy. **D. The applicants’ case** 1. In support of *setting aside*, they argue that the defendant lacked legal capacity to defend the suit on behalf of the estate, and that because the estate’s administrators were not joined, the proceedings and judgment are null and void *ab initio*. 2. The plaintiffs respond that the applicants’ case is defeated first by delay and acquiescence, second by finality, and third by the nature of the dispute itself. They submit that the judgment was not rendered in a succession cause, but in a land dispute concerning beneficial ownership and trust; that the defendant was the very person asserting rights adverse to the plaintiffs and had in fact initiated related proceedings in the Kadhi’s Court; and that, in any event, this Court is now *functus officio* after judgment and after affirmance by the Court of Appeal. 3. The Applicants stand firmly upon the strict letter of probate law. Their argument is simple, unyielding, and text-bound. Property registered in the name of a deceased person vests exclusively in their legally appointed personal representatives. The Applicants were confirmed as the sole administrators of the Estate of **Mohamed Suleiman Issa on April 13, 2011**. 4. They submit that by virtue of **Section 82(a)** of the Law of Succession Act, they alone possess the exclusive legal capacity to sue or be sued on behalf of the estate. Their brother, **Ahmed**, was merely an heir apparent, a legal stranger to the estate's formal titleship, and totally lacked the capacity to defend the property in court. 5. The applicants assert that they are the duly appointed administrators of the estate of the late **Mohamed Issa Suleiman** by virtue of the Grant of Letters of Administration Intestate issued on **7 June 2010** and confirmed on **13 April 2011** in ***Mombasa High Court Succession Cause No. 371 of 2009.*** 6. Their complaint is that although the suit property is registered in the name of the deceased, they were never joined as parties to the proceedings. They contend that the defendant, **Ahmed Mohamed Issa**, was not the legal representative of the estate and therefore lacked capacity to defend the suit on behalf of the estate. 7. On that footing, they submit that the proceedings culminating in the judgment of **6 December 2022** were incompetent from inception and that the judgment itself is null and void *ab initio*. 8. In support of that position, they rely on ***Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others KECA 326 (KLR), Rugiri v Kinuthia & 3 others KECA 1601 (KLR), Masjid Kairat (Mosque) & 21 others v Municipal Council of Mombasa & 3 others KEELC 8181 (KLR), Trouistik Union International & another v Mbeyu & another KECA 89 (KLR), Macfoy v United Africa Co. Ltd (1961) 3 ALL ER 1169,*** and ***Mwachala v Msafari & 3 others KECA 1142 (KLR).*** They urge the Court to enjoin them and set aside the judgment so that the suit may proceed *de novo*. **E. The plaintiffs’ response (Respondents’ case)** 1. The Plaintiffs/Respondents offer an entirely different narrative. They submit that the applicants’ case rests on a false premise, namely, that they were unaware of these proceedings until **2 February 2026**. 2. The Respondents produce evidence of a Replying Affidavit sworn by these very Applicants on **May 11, 2018**, in ***Mombasa High Court Succession Cause No. 371 of 2009.*** In that sworn statement, written four years before this Court’s judgment was delivered, the Applicants explicitly mentioned the existence and details of this land case. How, the Respondents ask, can a party swear an affidavit in 2018 discussing a lawsuit, and then stand before a judge in 2026 claiming they only discovered it six days ago? 3. The plaintiffs therefore argue that the applicants had knowledge of the proceedings long before judgment and cannot now come to court clothed in the language of surprise. They cite ***Telkom Kenya Ltd v John Ochanda (2014) KECA 600 (KLR)***, arguing that this Court is *functus officio*, and that reopening the case now would undermine the finality of litigation supported by the Supreme Court in ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others (2007) eKLR***. Equity aids the vigilant, they conclude, not the indolent who sleep upon their rights and awaken only to obstruct execution 4. The plaintiffs further contend that the applicants and the defendant are close family members and that the dispute concerns the same family property, making their alleged ignorance wholly implausible. 5. In addition, the plaintiffs submit that this Court is *functus officio*; that there is no pending suit to which the applicants can be joined; that the issue now raised does not render the judgment a nullity; and that the requirements for review, stay, or setting aside have not been met. **F. Issues for determination** 1. Upon considering the application, the response, the rival submissions, and the law, the following issues in my view arise for determination: *a. Whether this Court is functus officio.* *b. Whether the applicants can be enjoined after judgment and after appeal.* *c. Whether the judgment delivered on 6 December 2022 is a nullity for want of joinder of the applicants.* *d. Whether the applicants have satisfied the legal threshold for review, stay, or setting aside.* *e. What orders should follow.* **G. Analysis and determination** ***i. Whether this Court is functus officio*** 1. We must first look at the boundaries of our own power. Jurisdiction is the first question and must be the last question if it is answered in the negative. If it is absent, the Court must say so at once and go no further. If it is spent, the Court must equally say so and decline the invitation to re-enter a field it has already left. A court without jurisdiction writes on water. It may speak, but its words cannot stand. That is why the law insists that once a matter is finally determined, the court which decided it cannot ordinarily return to reopen the merits merely because one more litigant has arrived with one more complaint. 2. The doctrine of *functus officio* in Kenya is settled. In ***Telkom Kenya Ltd v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) KECA 600 (KLR)***, the Court of Appeal explained that *functus officio* is the principle that enforces judicial finality and prevents the re-opening of a matter before a court that has already rendered a final decision, save for limited exceptions such as correction of clerical errors or accidental slips. It stops a court from engaging in a **"merit-based decisional re-engagement with the case once a final judgment has been entered and a decree thereon issued".** 3. The same centrality of jurisdiction was underscored by the Supreme Court in ***Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others eKLR,*** where the Court held that a court’s jurisdiction flows from the Constitution or legislation and cannot be arrogated or expanded by judicial craft or convenience. 4. In the present matter, judgment was delivered by this Court on **6 December 2022**. That judgment resolved the dispute then before the Court. An appeal was filed and the Court of Appeal, in a judgment delivered on **18 July 2025**, affirmed the decision. The suit was therefore not only concluded at first instance; it was tested on appeal and upheld. The proceedings reached legal finality. In those circumstances, this Court cannot sit as if time has stood still and the proceedings remain pending. To revisit the merits under the guise of a post-judgment joinder motion would not be adjudication; it would be re-adjudication. 5. I therefore hold that this Court is *functus officio* in respect of any invitation to reopen the merits of the dispute as between the parties whose rights were determined in the judgment of **6 December 2022** and affirmed on **18 July 2025.** ***ii. Whether joinder can be granted now post judgment and appeal*** 1. The applicants lean heavily on the proposition that a necessary party may be added at any stage of the proceedings. That proposition is not wrong. But like many true propositions in law, it is true only within its proper habitat. The phrase *“at any stage of the proceedings”* does not mean after proceedings have ceased to exist. 2. Order 1 Rule 10(2) of the Civil Procedure Rules empowers the Court, at any stage of the proceedings, to add a person whose presence is necessary to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit. The purpose of joinder is thus adjudicative completeness in a live controversy, not resurrection of a suit long concluded. 3. The Supreme Court made that point with clarity in ***Everton Coal Enterprises Limited v Karanja & 5 others KESC 98 (KLR)***, where it held that joinder contemplates ongoing proceedings and that once the original dispute has been settled in a judgment, there are no proceedings to which a party may properly be joined years later. The Court also cited with approval an earlier holding by the Court of Appeal sitting in Mombasa in ***JMK v MWM & another eKLR [2015] KECA 524 (KLR)*** on the proposition that the power to add a party applies before or during trial, but not after final disposal when nothing remains to be done. 4. I am alive to the Court of Appeal’s decision in ***Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others KECA 326 (KLR)***, relied upon by the applicants, where post-judgment joinder was upheld. But that authority does not establish a universal rule that post-judgment joinder **must always** be granted or automatic. It affirms rather that joinder is discretionary and dependent on the justice of the particular case. Whereas, that power exists, it is an extraordinary remedy reserved for rare cases where a hidden party has been genuinely and unfairly left out of a trial without their knowledge, causing an unconscionable injustice. It was never intended to be a safety net for calculated dishonesty. 5. Here, the distinguishing features are decisive. There has been a full trial. There has been an appeal. There is already a decree. The applicants seek not merely to be added for a limited ancillary purpose, but to turn the clock back, set aside the judgment, reopen the suit, and litigate it afresh. That is not joinder in aid of adjudication; it is joinder in order to undo adjudication already completed. 6. I therefore find that there is no pending suit before this Court to which the applicants may now be joined under Order 1 Rule 10(2). Their prayer for joinder fails on that ground alone. ***iii. Whether the judgment is a nullity*** 1. The gravamen of the applicants’ case is that the judgment is a nullity because the suit property stood in the name of a deceased person and the estate’s administrators were not parties. They say the defendant lacked capacity to defend the matter on behalf of the estate and therefore everything done in his name falls. 2. There is, of course, respectable authority for the proposition that where a cause of action lies against the estate of a deceased person, the proper party is the legal representative and not a relative, heir, occupier or interested person acting without a grant. That is the teaching in ***Trouistik Union International & another v Mbeyu & another KECA 89 (KLR)***, and it has been repeated in later decisions including ***Rugiri v Kinuthia & 3 others KECA 1601 (KLR).*** 3. There is also authority that one cannot obtain binding orders against a deceased person’s estate without suing the legal representative. Cases such as ***Masjid Kairat (Mosque) & 21 others v Municipal Council of Mombasa & 3 others KEELC 8181 (KLR) and M’imana M’ithalia v Kamotho Ntonjia & another eKLR*** are illustrations of that principle in their proper contexts. 4. But law is not applied in the abstract. It is fitted to the facts before court and applied to a record. And the record before me reveals that this was not a simple estate-liability claim brought against a passive title. It was a contested land dispute in which the defendant actively asserted rights over the suit property, denied the plaintiffs’ claim of trust and beneficial ownership, defended the suit at trial, and pursued an appeal to the Court of Appeal. 5. The earlier ELC judgment shows that the dispute placed before the Court concerned whether the plaintiffs were beneficial owners of the house standing on the plot, whether a trust existed, and whether the defendant could evict them. The Court of Appeal judgment likewise shows that the issues on appeal revolved around trust, beneficial ownership, evidentiary treatment of the **1979** agreement, and the parties’ competing claims over the house and the land. 6. The applicants’ own affidavit material further shows that the certificate of confirmation of grant and the status of administration of the estate were matters known and documented well before this application. Indeed, the applicants’ existence as administrators was part of the documentary universe from which this litigation drew its background. 7. More significantly, the plaintiffs have pointed to a replying affidavit sworn on **11 May 2018** in Succession Cause No. 371 of 2009 in which one of the present applicants expressly referred to this very ELC suit. The draft on record quotes paragraph 12 of that affidavit as acknowledging that there was *“a dispute over the ownership of Mombasa/Block XVII in ELC Case No. 398 of 2017.”* If that be so, and there is nothing before me dislodging it, then the present plea of total ignorance collapses under the weight of the applicants’ own earlier words. 8. This is important because nullity is a grave conclusion. A nullity is not lightly declared. It is not enough that another procedural course might have been preferable. Nor is it enough that another judge, faced with the same record, might have considered joinder desirable. The court must ask whether the proceedings were fundamentally incompetent in a manner that destroyed the jurisdictional foundation of the suit. 9. On the material before me, I am not persuaded that threshold has been met. The defendant was not a stranger dragged in from the roadside. He was the active antagonist in the dispute. He was the person who had moved the Kadhi’s Court concerning the same property. He defended the trust claim. He produced documentary material connected to the estate. He appealed. The dispute was fully ventilated to the Court of Appeal. 10. Even more decisively, the Court of Appeal, while fully aware from the record that the title was in the name of the deceased and that succession proceedings existed, upheld the trial court’s determination. This Court cannot now, in the face of that appellate affirmance, pronounce the entire trial and appeal a nullity through a post-judgment application by non-parties who were aware of the litigation and did not intervene in time. 11. I therefore decline to hold that the judgment of 6 December 2022 was null and void *ab initio*. ***iv. Delay, acquiescence, and candour*** 1. Equity has long been suspicious of the litigant who sleeps through the storm and awakens only when the harvest is ready. The applicants say they discovered the suit on **2 February 2026.** Yet the record placed before the Court by the plaintiffs suggests that one of the applicants referred to this very suit in 2018 in sworn succession proceedings. 2. If indeed the applicants were aware of the suit in 2018, then they had years within which to move the Court for joinder before judgment, or at the very least before determination of the appeal. They did neither. They watched the river flow past both the trial court and the Court of Appeal, and only after the appellate judgment and at the onset of execution did they come forward to say they had been left behind. 3. This is a classic case for the application of estoppel by conduct, as outlined by the Court of Appeal in ***Mjengo Limited v Menengai Oil Refineries Limited (2025) KECA 85 (KLR)*** A party cannot stand by, fully aware of a lawsuit affecting their claimed property, allow it to be litigated to the highest court at immense cost to the other side, and then demand a second bite at the cherry. Equity aids the vigilant, not those who scheme in the shadows. The Applicants are completely barred by laches and estopped by their own conduct from seeking joinder at this late hour. 4. That conduct materially weakens the equitable appeal of their motion. Joinder is discretionary. Setting aside is discretionary in many instances. Stay is discretionary. Review is discretionary. A party who seeks discretion must approach the Court with candour, promptitude, and clean hands. On the present record, the applicants do not satisfy that standard. ***v. Whether the applicants have established a basis for stay, review, or setting aside*** 1. The applicants also ask for review and stay. Neither prayer is available on the facts presented. Review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules is limited to discovery of new and important matter not previously available despite due diligence, error apparent on the face of the record, or other sufficient reason, and must in any event be sought without unreasonable delay. 2. In ***Francis Origo & another v Jacob Kumali Mungala (2005) eKLR,*** the Court of Appeal restated those requirements with clarity. The three requirements for review include no delay, new and material relevant facts, and that review is not appeal nor a backdoor option to re-litigate an appeal. The applicants before this Court do not meet them. 3. The plaintiffs correctly submitted that the matters now relied upon by the applicants were not new. The applicants’ status as administrators was not born on **2 February 2026.** The grant was issued in 2010 and confirmed in 2011. The succession cause existed. The title existed. The relationship of the parties existed. If there was a question as to proper parties, that question was available long before judgment and certainly long before the appeal was heard and determined. 4. Further, review does not lie where an appeal has already been preferred and determined on the same decree. The decree and judgment impugned herein were the subject of ***Civil Appeal No. E025 of 2023***, decided on **18 July 2025**. The avenue of review is therefore barred in substance and overtaken by the appellate process. 5. The prayer for review must therefore fail. 6. As regards stay, the law is settled under Order 42 Rule 6 of the Civil Procedure Rules. The classic requirements remain sufficient cause, substantial loss, promptness, and security. Those principles were restated in ***Halai & another v Thornton & Turpin (1963) Ltd KECA 65 (KLR), Butt v Rent Restriction Tribunal KECA 22 (KLR), and Kenya Shell Ltd v Benjamin Karuga Kibiru & another KECA 94 (KLR).*** The applicants have not met them. Their application came years after judgment, months after the appellate judgment, they have not demonstrated substantial loss in the legal sense, promptitude, and readiness to furnish security for the due performance of the decree. 7. The present motion was filed on **9 February 2026**. By then, the judgment sought to be stayed had been in existence since **6 December 2022** and had already been affirmed on appeal on **18 July 2025**. The delay is manifest. It has not been satisfactorily explained. 8. Nor have the applicants demonstrated substantial loss in the legal sense required by the authorities. Nor, again, have they offered satisfactory security. 9. The prayer for stay is therefore unmeritorious. 10. As to setting aside, the Court’s discretion is always exercised in aid of justice. But justice speaks in more than one voice. It speaks not only to the right to be heard, but also to the right of a successful litigant to enjoy the fruits of judgment, and to the public interest that litigation should, at a proper moment, come to an end. 11. The Supreme Court in ***Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others eKLR*** underscored the doctrine of finality. That doctrine is not a technicality. It is one of the law’s ways of protecting certainty, order, and the integrity of judgments. 12. This dispute has been in court since 2017. It was heard. It was decided. It was appealed. It was affirmed. On the material before me, the applicants knew, or at the very least had the means of knowing, that it existed. In those circumstances, setting aside would not serve justice; it would unsettle it. **H. Disposition and orders** 1. Litigation must come to an end. This Court is not unmindful that disputes over family land and houses are rarely about bricks and boundaries alone. They are often about memory, inheritance, belonging, and the quiet ache of exclusion. But courts must administer justice according to law, and the law also protects finality. Litigation must not become a homestead without a gate, where every new arrival may reopen what has already been heard, decided, appealed, and confirmed. 2. In the end, I find and hold that: 3. ***This Court is functus officio in relation to the merits of the dispute determined in the judgment delivered on 6 December 2022 and affirmed by the Court of Appeal on 18 July 2025.*** 4. ***There is no pending suit to which the proposed defendants/applicants may now be joined under Order 1 Rule 10(2) of the Civil Procedure Rules.*** 5. ***The applicants have not established that the judgment of 6 December 2022 is a nullity ab initio.*** 6. ***The applicants have not met the legal threshold for review, setting aside, or stay of execution.*** 7. The Notice of Motion dated **9 February 2026** is therefore devoid of merit and is hereby dismissed with costs to the plaintiffs/respondents. 8. Orders accordingly. **Ruling dated and signed at Mombasa and delivered virtually via Microsoft Teams on this 9th day of July 2026.** **……………………** **B. A. AKELLO, OGW** **JUDGE** **In the presence of:** Gillian - Court assistant ……….. for the defendants Ms Hamid for the plaintiffs Abaja for the proposed defendants/applicants